Author Topic: Military, Veterans Affairs won’t pay for Air Force officer’s prosthetic leg  (Read 8539 times)

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Offline Jarnhamar

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Military, Veterans Affairs won’t pay for Air Force officer’s prosthetic leg, leaving her with $34,000 bill

The Canadian Armed Forces says Capt. Kimberly Fawcett was on duty during an accident in which her son died and she lost her leg, but as Mercedes Stephenson reports, the government is refusing to pay for Fawcett's prosthetic limb


https://globalnews.ca/news/4753763/kimberly-fawcett-prosthetic-leg/?fbclid=IwAR0GsaLJcjG1lGsiPDY6zvkl82MtwOlPx0Uq3Aq4vbyPbgesYHzo3e7sjAk
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Offline Rocky Mountains

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Military, Veterans Affairs won’t pay for Air Force officer’s prosthetic leg, leaving her with $34,000 bill

The Canadian Armed Forces says Capt. Kimberly Fawcett was on duty during an accident in which her son died and she lost her leg, but as Mercedes Stephenson reports, the government is refusing to pay for Fawcett's prosthetic limb


Isn't this a civil matter?  The truck that hit her must have had insurance.  Did she sue and recover from the truck driver's insurance?

Offline Eye In The Sky

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What an absolutely horrible story to read, in more ways than one.

My opinion;  please, GoC, CAF, VAC...someone pay for this Officers prosthetic leg.  If I had the money to spare, I'd do it myself.
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What an absolutely horrible story to read, in more ways than one.

My opinion;  please, GoC, CAF, VAC...someone pay for this Officers prosthetic leg.  If I had the money to spare, I'd do it myself.
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Offline Bruce Monkhouse

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Hmmm.....much as I sympathize I don't see where her personal insurance shouldn't cover this.  Lots of working folks take thier kids to a babysitter if work calls.
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Offline Eye In The Sky

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Hmmm.....much as I sympathize I don't see where her personal insurance shouldn't cover this.  Lots of working folks take thier kids to a babysitter if work calls.

The difference is the CAF policy on injury while on duty, duty status if recalled by your CO.

Would the member have been in the location of the accident, at the time of the accident, if not recalled?  Probably not.
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There was a court decision on this matter where she was successful but then she lost on appeal by the military: https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/301640/index.do?r=AAAAAQAHZmF3Y2V0dAE

The legal costs on this matter are, by far, more than it will ever cost to provide this brave woman what she needs. By that i mean that even thought the court did not assign costs to any party, they spent more time and money fighting her than helping.

This right here is the crux:
[43]       The CDS did not err by concluding that Captain Fawcett sought and received permission to be away from duty for family reasons, whereas the FCP only governs absences from family for duty reasons.


« Last Edit: December 12, 2018, 15:29:11 by Cloud Cover »
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Offline Bruce Monkhouse

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The difference is the CAF policy on injury while on duty, duty status if recalled by your CO.

Would the member have been in the location of the accident, at the time of the accident, if not recalled?  Probably not.

 Again,  so would lots of people in recallable jobs.
 I'm not downplaying the agony  of losing your Son and the personal injury, but with all due respect,  would the Govt be on the hook for all of its employees taking thier kids to day care ??
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Offline Blackadder1916

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I will probably be vilified for this, but as having been, in a former life, one of the bean counters that paid the bills for things like this, there are probably a few details missing from the story.  In the twelve and a half years (Feb. 21, 2006 - date given in article) since the horrific accident that changed Captain Fawcett's life forever it is likely (certainly, if I hazard a guess) that she has been fitted and received (at government expense) with at least one prosthetic limb and more than likely one or two subsequent replacements/upgrades.  As a serving Regular Force member (and thus covered for medical care by the CF) it would not have mattered what her duty status was at the time of the accident, she would have received the medical services needed (including prosthetics).  The same coverage and provision of services would also apply as she continued her career.  Duty status and whether the injury was "due to military service" is really only a factor in care received from Veterans Affairs.

While Capt Fawcett may be eligible to have the cost of her prosthetic covered by the CF, it is not an open chequebook, there are some limitations as indicated in the Spectrum of Care.

http://www.forces.gc.ca/en/caf-community-health-services-benefits-drug-coverage/supplemental-health-care-coverage.page#prosthesis-implants
Quote
Prosthesis and Implants: (see Dental Section for dental implants),
1.  breast prostheses following mastectomy, and replacement, but not within 24 months of the last purchase for the same side;
2.  temporary artificial limbs; and
3.  permanent artificial limbs and replacement thereof, but not within:
a.  60 months from the last purchase of the same limb in the case of a member over 21 years of age, unless medically proven that growth or shrinkage of the surrounding tissue requires replacement of the existing prosthesis at an earlier date
; or
b.  12 months from the last purchase of the same limb in the case of a member 21 years of age or less.

So the missing information in the story is "when did the government last pay for a leg".
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Offline PMedMoe

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The difference is the CAF policy on injury while on duty, duty status if recalled by your CO.

Would the member have been in the location of the accident, at the time of the accident, if not recalled?  Probably not.

She hadn't been recalled.  Her unit was next in line for activation.  She was preparing for the fact that she might be recalled.

Do I think her prosthetic leg should be paid for?  Yes.  However, I don't agree that she was on duty at the time of the accident.
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Offline Navy_Pete

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This is ridiculous.  They have fought for ten years, gone through a number of investigations, and gone to court and appealed this, for $39k?

The bean counters may want to include the cost of personnel spent on this; sure it's probably north of seven figures by now.  Also, if she deployed with it, it's the same as providing prescription glasses needed to do the job, so why are we spending so much time and effort on being complete dicks?

Offline garb811

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For reference, an almost verbatim article from June:  She lost her child and her leg in a horrific car crash. Now, an air force officer is fighting her military bosses

At the heart of this is the complete and utter failure to fully understand what is considered "on duty" and "off duty" across the CAF as a whole.

Offline Eye In The Sky

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She hadn't been recalled.  Her unit was next in line for activation.  She was preparing for the fact that she might be recalled.

Do I think her prosthetic leg should be paid for?  Yes.  However, I don't agree that she was on duty at the time of the accident.

I am only able to go off the info in the story, but:

Quote
On the morning of Feb. 21, 2006, it looked like a double deployment could be in the works. Fawcett’s husband Curtis was called to the base for workup training to deploy to Africa and her unit was next in line for activation.

Fawcett executed the Family Care Plan with the approval of her commanding officer, donning her uniform and putting her son in the car to drop him at his grandparents’ house.

A summary investigation ordered by the military found that, although Fawcett was not at her place of duty at the time of the accident, she was “’going about a matter related (directly) to service in the Canadian Forces’ (Ref E para 29) in that both travel to her son’s daycare and then to the base were required activities to enable her to perform her military duties at work.”

The investigating officer continued that Fawcett “… should be considered on duty from the time she left home in uniform, as her activities were all in support of carrying out her military duties.”

That finding was overturned by one of Fawcett’s commanding officers who determined she was not on duty despite the findings of the summary investigation.

That position was directly disputed in a review by one of Canada’s top generals at the time, Major General Walter Semianiw who was the Chief of Military Personnel. In a review Major General Semianiw determining Fawcett was on duty and following military orders at the time of her accident, concluding “The execution of the Family Care Plan, is in fact, a military order.”

Some important details are absent...but assuming the CO was aware and recalled the member, would not QR & 0, Vol 1, Ch 16, Art 16.01(2) and 16.01 (3) apply?

16.01 - WITHHOLDING OF AND RECALL FROM LEAVE

(1) Leave may be withheld from an officer or non-commissioned member only when there is a military requirement to do so.

(2) An officer or non-commissioned member on leave may be recalled to duty only:
a.because of imperative military requirements; and
b.when the member's commanding officer personally directs the member's return to duty.

(3) An officer or non-commissioned member recalled to duty under paragraph (2) ceases to be on leave and is on duty during the period of the journey from the place from which he is recalled to his place of duty and during the period of the return journey if he resumes leave immediately after completion of the duty for which he was recalled.

* the story makes it sound like it wasn't her CO at the time of the accident, but one later on in her career, that decided against the recommendations of the SI.
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According to the court decision, she had a conversation with her CO. They agreed that she should find alternate care for the child and she acted on that, even if she wasn't ordered or activated, something was afoot that was reasonably foreseeable to both of them.  This was the conclusion of General Semianiw. It was the decision of the advisors to the CDS that prompted the denial of documentation required by VAC to assist her. Unlike other public service pension acts, the plan that applies to Canadian Forces members is not to be construed as liberally when evaluating workplace accidents or work related injuries and more deference is given to the decisions of the CDS than is given to other institutions.

The CDS decision makes her decision to "ready up" look like an irrational or rash decision, which it probably was not.

16.01 did not appear anywhere in the considerations that are online.
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Offline PMedMoe

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EITS, military members are required to have a FCP regardless of deployment status.  See here (note the word "mandatory").

You don't "execute" a FCP but you must have one.

DAOD 5004-1, see para 5.

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Offline JesseWZ

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According to the court decision, she had a conversation with her CO. They agreed that she should find alternate care for the child and she acted on that, even if she wasn't ordered or activated, something was afoot that was reasonably foreseeable to both of them...
The CDS decision makes her decision to "ready up" look like an irrational or rash decision, which it probably was not.

16.01 did not appear anywhere in the considerations that are online.

I've been in situations where I've rightly anticipated a call out and made preparations so that the call out was smooth and I was available with minimal energy and wasted time on the part of the chain of command.
It's incredibly disappointing that her decision made with full intention to support the CAF and give her CoC the flexibility needed to make sound and timely decisions should things truly be afoot come back to punish her this harshly. It's also a stark reminder to the rest of us... Is our collective operational efficiency worth this?

I guess she was asking for more than the government could give right now.

Edited as I have more thoughts on this...

The collective "we" of the CAF often ask our members to do a lot of what could properly be characterized as "work" or "activities to support work" outside of regular duty hours or ones regular work week. I can foresee this decision causing some to start "nickel and diming" their time to make sure its properly accounted for and characterized and maybe that's what we need.

As Garb puts it:

At the heart of this is the complete and utter failure to fully understand what is considered "on duty" and "off duty" across the CAF as a whole.

At what point does the CAF responsibility to its members stop? If I'm mandated to have a family care plan per the DAODs, would it not be for the purposes of executing that plan when the time arose? It seems like the collective "we" are punishing a member for following the DAODs and having the foresight expected of an officer to make sound and timely decisions when the balloon goes up. What a shite decision.
« Last Edit: December 12, 2018, 16:43:38 by JesseWZ »
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Offline Blackadder1916

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As some mention the court decision in their posts it may be worthwhile to see what it actually says.

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/301640/index.do?r=AAAAAQAHRmF3Y2V0dAE

Quote
JUDGMENT AND REASONS

[1]           On February 21, 2006, Captain Kimberly Fawcett, a member of the Canadian Forces [CF] was involved in a tragic motor vehicle accident while taking her son to daycare on the way to work. The accident resulted in the death of her son and Captain Fawcett losing her right leg above the knee. She seeks judicial review of the November 7, 2016 decision of the Chief of Defence Staff [CDS] concluding that she was not on duty at the time of the accident and that the injuries sustained were not attributable to military service. Captain Fawcett argues that because she and her husband were serving in high readiness units, and because she was taking her son to daycare pursuant to a CF Family Care Plan [FCP], she was on duty and acting pursuant to a CF order at the time of the accident.

[2]           For the reasons that follow, I conclude that Captain Fawcett’s unique circumstances were reasonably considered by the CDS but were not found to support her argument that she was engaged in military service at the time of the accident. Considering the deference owed to the CDS decision, this is a reasonable conclusion and therefore this judicial review is dismissed. I decline to award costs.

And the initial (2012) Federal Court decision
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61231/index.do?r=AAAAAQAHRmF3Y2V0dAE

And the Redress of Grievance decision
https://www.canada.ca/en/military-grievances-external-review/services/case-summaries/case-2014-093.html

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As some mention the court decision in their posts it may be worthwhile to see what it actually says.

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/301640/index.do?r=AAAAAQAHRmF3Y2V0dAE

And the initial (2012) Federal Court decision
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61231/index.do?r=AAAAAQAHRmF3Y2V0dAE

And the Redress of Grievance decision
https://www.canada.ca/en/military-grievances-external-review/services/case-summaries/case-2014-093.html
In my comment above where I quoted and referenced the CDS, it would appear that what advisors to the CDS* consider as a reasonable decision was not what Fawcet and her CO thought was reasonable, and the 2 star general who reviewed the matter supported her.  That should have been the end of it, but no, of course not.


* ( we all know he signs off but does not write these reports)
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Offline Rifleman62

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Morally?
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It’s the Canadian Forces. The people are decent, the institution not so much.
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Offline Navy_Pete

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Saddens me that it got this far.  This will be all over a bunch of peoples BBs right now, and odds are good someone will just say this is crap, and sort this out.

She had something awful happen in her life, fought her way back to FULLY DEPLOYABLE after being critically injured, and went into theatre with a prosthetic (that they seem to be refusing to pay for).  This is the kind of story that should be in the news as an example of the CAF supporting it's people and not because some arseclown didn't like a line item charge.

This is a complete loss; brutal treatment of a CAF member, yet another PR disaster, and also completely financially irresponsible. The staff work to reject the SI finding alone must have cost more than the prosthetic, let alone all the follow on. Mind is just blown here.

This should be some kind of case study in what not to do in staff college. And the big giant heads wonder why there is cynical laughter at the talking points of 'people are the top priority'.

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Just so we’re all in common agreement, the CF paid for everything while she was in rehab and still in the mob. This is a pension benefit issue that arose under the circumstances of her release from the military. Just because she retired or released doesn’t mean the need for new prosthetics, adjustments, upkeep and spares goes away.
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Offline PMedMoe

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So the missing information in the story is "when did the government last pay for a leg".

I'm also curious as to whether a special or different prosthetic is required for her various athletic activities.

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Offline ontheedge

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Wow I’m amazed she did all the legal work herself and self represented.

Offline Jarnhamar

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The CAF couldn't meet the government's direction to deploy X % of female members to the force in Mali.

Does a story like this paint the CAF like a good employer and make women want to join?  Doubt it.

If we want to debate counting bullets and beans we should take a look at the money we waste every March.



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Offline PMedMoe

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The CAF couldn't meet the government's direction to deploy X % of female members to the force in Mali.

Does a story like this paint the CAF like a good employer and make women want to join?  Doubt it.

If we want to debate counting bullets and beans we should take a look at the money we waste every March.

As stated by Cloud Cover, the CF did cover her costs while she was still in.  Now we're talking about VAC but yes, the optics don't look good either way.
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Offline dapaterson

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Wow I’m amazed she did all the legal work herself and self represented.

I have seen nothing stating that she is self represented and did all the legal work herself.
This posting made in accordance with the Charter of Rights and Freedoms, section 2(b):
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Offline Eye In The Sky

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EITS, military members are required to have a FCP regardless of deployment status.  See here (note the word "mandatory").

You don't "execute" a FCP but you must have one.

DAOD 5004-1, see para 5.

I think we're debating different aspects, actually.  I was more looking at the 'was she on duty' at the time.  Going only off the story info, I thought "it seems so".

However, BlackAdder's post with the links to the court decision and the grievance add some clarity.  As a mbr who has dealt with a grievance that went to the Military Grievances External Review Committee, I trust that their analysis was very thorough and unbiased.  From the grievance committee F & R (Findings and Recommendations):

Quote
The Committee had to determine whether the grievor was on duty at the time of her motor vehicle accident and whether her injuries were attributable to military service.

The Committee acknowledged that the grievor and her service spouse were serving in high readiness units and had chosen to use their FCPs not only to prepare for unexpected duty absences, but also to address normal daily childcare requirements. The Committee noted that it was open to the grievor to design and use her FCP in the manner best fitting her needs, and that this was her personal choice. The Committee explained that the grievor's claim to have been on duty relied not on how she designed and used her FCP but on whether she was ordered by military authorities to use it on the day of her accident. In this regard the Committee noted that there was no evidence to suggest that she was ever ordered to activate her FCP.

Thanks, BlackAdder, for finding and providing the links.

« Last Edit: December 13, 2018, 17:45:29 by Eye In The Sky »
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Offline Rifleman62

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Trend - Equitas lawsuit appeal denied by Supreme Court, the PM's comment in Edm, etc.

It would be interesting to see what would happen if a Cabinet Minister or an MP had an similar accident on their way to "work".
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Offline PMedMoe

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I think we're debating different aspects, actually.  I was more looking at the 'was she on duty' at the time.  Going only off the story info, I thought "it seems so".

Actually, we were debating the same thing.  She wasn't on duty. She may have been in a high readiness unit that was next to go, but she wasn't deployed nor had she been recalled from leave.  She was taking her child to daycare. The article was, of course, biased in her favour.

However, BlackAdder's post with the links to the court decision and the grievance add some clarity.  As a mbr who has dealt with a grievance that went to the Military Grievances External Review Committee, I trust that their analysis was very thorough and unbiased.  From the grievance committee F & R (Findings and Recommendations):

Thanks, BlackAdder, for finding and proving the links.

Yes, thanks. 
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Offline Jarnhamar

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So she actually wasn't on duty at the time of the accident as the article states?

Quote
The Canadian Armed Forces says Capt. Kimberly Fawcett was on duty during an accident in which her son died and she lost her leg, but as Mercedes Stephenson reports, the government is refusing to pay for Fawcett's prosthetic limb
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Offline Eye In The Sky

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So she actually wasn't on duty at the time of the accident as the article states?

Not according to Finding and Recommendations detailed in the Case Summary.  Have a read of the Grievance Committee's F & R / Case Summary.  It has some key details.

https://army.ca/forums/index.php/topic,129529.msg1556304.html#msg1556304

Additionally, although the article says:

Quote
That position was directly disputed in a review by one of Canada’s top generals at the time, Major General Walter Semianiw who was the Chief of Military Personnel. In a review Major General Semianiw determining Fawcett was on duty and following military orders at the time of her accident, concluding “The execution of the Family Care Plan, is in fact, a military order.”

The Grievance case summary states:

Quote
The Initial Authority, the Chief of Military Personnel, denied the grievance, finding that the grievor's request to report to work late on that day was a routine circumstance which did not require invoking her FCP.

 :dunno:


« Last Edit: December 13, 2018, 10:42:17 by Eye In The Sky »
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Offline Jarnhamar

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Thanks.

I wonder if the CAF/VAC ultimately feels like it was worth the 10 year battle and subsequent PR that comes with the story.
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Offline Remius

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Thanks.

I wonder if the CAF/VAC ultimately feels like it was worth the 10 year battle and subsequent PR that comes with the story.

If it avoids a precedent then I suppose so.
Optio

Offline PMedMoe

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So she actually wasn't on duty at the time of the accident as the article states?

And as escort to bereaved families, she also didn't serve "during the height of the Afghanistan war in Kandahar" either.

If it avoids a precedent then I suppose so.

This is my thought too.  I can see it now, someone will get in an accident going to get Kiwi polish and state they were on duty because it's a military order to have their boots polished.

I see now there's an update to the article.  Looks like she'll get some help.

Quote
Late on Dec. 12, officials from the Canadian Armed Forces told Global News they are willing to immediately sit down with Captain Kimberly Fawcett and examine any outstanding costs for her prosthetic. Defence Minister Harjit Sajjan also says he is looking into the file and the military adds Fawcett is receiving support through multiple military programs. Also, since Global News posted Fawcett’s story, a veteran’s charity has stepped up and is offering to pay some of her bills to alleviate the financial strain.
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Offline Jarnhamar

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If it avoids a precedent then I suppose so.
Plus it might help people forget about the whole VAC paying for that police murderers medical/rehab bills.


Quote from: PMedMoe


This is my thought too.  I can see it now, someone will get in an accident going to get Kiwi polish and state they were on duty because it's a military order to have their boots polished.


What if they were on their way to work and deviated from the quickest route to work in order to get some kiwi polish and got in an accident?

I'm fine with being wrong but a $30'000 leg hardly seems worth while battle for the CAF, monitairily, resource wise or morally.

Quote
I see now there's an update to the article.  Looks like she'll get some help.


I expected as much (and glad to hear). 
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Offline PMedMoe

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What if they were on their way to work and deviated from the quickest route to work in order to get some kiwi polish and got in an accident?

I think that unless you've be recalled from leave (or something similar), you're not on duty when you're driving to work.

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Offline Eye In The Sky

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I think that unless you've be recalled from leave (or something similar), you're not on duty when you're driving to work.

Recalled while on standby/duty, AFAIK, also falls under the "on duty" side from the moment you get the call.  I'd have to find the ref, but this was a topic once at the unit because there are "Ready" air and ground crews at home after Sqn Duty normal duty hours, 24/7/365.
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Offline PMedMoe

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Recalled while on standby/duty, AFAIK, also falls under the "on duty" side from the moment you get the call. 

And that would fall into the "something similar".   ;)

But just driving to work on a regular work day?  Not "on duty".

For reference, an almost verbatim article from June:  She lost her child and her leg in a horrific car crash. Now, an air force officer is fighting her military bosses

Idle curiosity made me look this up.  The National Post is owned by CanWest Global Communications Corp, who also owns Global News.  So, not terribly shocking.
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Global News is the news and current affairs division of the Global Television Network in Canada, itself owned by Corus Entertainment which was formed in 1999 as a spin-off from Shaw Communications.
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Offline Tcm621

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Idle curiosity made me look this up.  The National Post is owned by CanWest Global Communications Corp, who also owns Global News.  So, not terribly shocking.

The National Post is owned by Postmedia Network which owns the publications listed in the link below:
https://en.wikipedia.org/wiki/Postmedia_Network

Global was sold to Shaw circa 2010.

Offline garb811

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...

I'm fine with being wrong but a $30'000 leg hardly seems worth while battle for the CAF, monitairily, resource wise or morally.
 
...
Well, as mentioned previously, there is a danger of precedent here.

If she was deemed to be on duty while driving her kid across town, what about if she had been driving to Ottawa for the same purpose? What about a single parent who has to fly to another city to get their child to a grandparent? 

If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

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The National Post is owned by Postmedia Network which owns the publications listed in the link below:
https://en.wikipedia.org/wiki/Postmedia_Network

Global was sold to Shaw circa 2010.

I stand corrected.  I still wouldn't be surprised if there were some collaborating between companies.

Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

^This^
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Offline Eye In The Sky

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If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

In some cases, it could and would be.   And you'd be entitled to some expenses...
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Offline JesseWZ

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Or is the reality simply that the FCP is an administrative tool order we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

I fixed that for you.

While taking the argument to it's extremes with the Kiwi polish, the line between duty and not duty seems to be more and more blurry.
On one hand, units are *supposed* to publish regular working hours. On the other, what happens if a member makes the decision to work late in order to catch up on work?
Are they still "on duty"? What happens if they're asked to work late by their immediate supervisor? Does this amendment to the regular working hours put them on duty? What happens to personnel where there is a cultural expectation to monitor their blackberry and respond to emails and phone calls outside of the units regularly published working hours? Are they on duty while typing those emails?

I have a personal stake in this decision (as I feel all serving members do) as I work a considerable amount of time outside of regular published business hours depending on the speed flow and direction of an investigation. There is a cultural expectation crystalized in our SOPs that while I'm on duty (or on call to avoid blurring the meaning of the word further) that I be sober, reachable by Blackberry and able to get to work quickly to assume an investigation. These "on call periods" take up roughly one out of every two weeks.

Once you throw in the wrinkle that regular force members and certain classes of reservist are subject to the Code of Service Discipline 24 and 7 and all applicable orders and directions even when on leave - it implies they at the least have a "duty" to follow those orders and directions. When actively following those orders and directions, are they not on duty? I feel like the argument is similar to the CAF having their cake and eating it too. They can control all aspects of the members life even when not "on duty" - but when those shitty life things happen, they'll disavow responsibility to the member.
« Last Edit: December 13, 2018, 14:12:33 by JesseWZ »
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Offline PMedMoe

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FCP notwithstanding, I still don't think someone taking their child to daycare is on duty unless they were recalled into their unit for deployment (or for some other military requirement) and dropping their child off was for the purpose of being able to perform their military duty.

Another thing that arose from this incident (besides the on/off duty argument) was whether or not her injuries were attributable to military service.  From the court decision of Nov 2017:

Quote
The CDS acknowledged that there are two concepts within this definition, namely: “directly connected with military service” and “arose out of military service.” In both instances he concluded that the meaning cannot be stretched to capture the concept of parental responsibilities equating military service.

Edit to add:  In one of the court transcripts, it was said that her husband normally dropped their child off but he had been recalled to his unit for deployment training.  If he had been dropping the child off and the same accident occurred to him, then in that scenario he would have been considered on duty because he was subject to a unit recall.  In her case, she was not.
« Last Edit: December 13, 2018, 14:30:36 by PMedMoe »
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Offline Blackadder1916

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I'm fine with being wrong but a $30'000 leg hardly seems worth while battle for the CAF, monitairily, resource wise or morally.
 

If you actually read the Federal Court decisions and the grievance summary you may note that there is no mention anywhere in any of those documents of "prosthetic leg costs" or "Spectrum of Care" or anything else about being reimbursed for expenses related to her accident.  So, the 10 year battle has nothing to do about what is, in essence, a relatively minor cost.  "Relatively minor" in the grand scale of things from a military medical viewpoint (obviously a major chunk of change for Capt Fawcett) but also not a surprizing amount considering the research and technology that has gone into prosthetics in recent years (one of the follow-on benefits from war, but one that the beneficiaries probably wish could have been avoided).  The sole thing that Capt Fawcett sought was to have the injuries resulting from her accident be declared as having occurred on duty and attributable to military service.  It really does not make any difference (or should not) to have such a ruling as long as she remained in the CF.  Her medical costs, subject to the limitations I mentioned in a previous post, would (or should) have been covered.  The importance of having the injuries attributable to military service comes into play only when making a claim to VAC.  While there is the obvious financial benefit of a Disability Award, once she retires from the CF she will continue to have costs associated with maintaining and/or replacing her prosthesis.  While some of those costs can be covered by provincial health insurance and PSHCP (which uses the exact same wording a the CF Spectrum of Care to define the benefit, though they have that nasty 80% clause), it would be beneficial to have the government being responsible for those costs as one ages (and the costs get significantly greater).

From the 2012 Federal Court decision.
Quote
[6]               The applicant applied to the Department of Veterans Affairs for disability benefits in June 2006, and that application was denied on October 6, 2006.  The applicant received a copy of the Summary Investigation into her accident which was accompanied by a cover letter from Commander CFJSG, Colonel C.C. Thurrott (Commander Thurrott).  The Summary Investigation found that the applicant was on duty at the time of the accident but Commander Thurrott disagreed with that finding.  The applicant states that she chose not to pursue this matter further at the time, but rather to focus on her rehabilitation.

[7]               After learning from a colleague, and from her Pension Advocate, that significant weight is placed on the Summary Investigation in determining duty status, the applicant decided to file a grievance regarding the Summary Investigation.  The applicant submitted her grievance on June 2, 2009.
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Offline Jarnhamar

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Typical case of “doing things right” (process driven) vs “doing the right thing” (effect/morality driven).

In its typical fashion, the Government does things right and only incidently the right thing (when both happen to be the same).

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If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

I have to say it again . She had a communication with her superior. There was a meeting if the minds. Not everything has to be an order in a case like this. She lost her blood and soul for the mob - I can think of two others on these forums who gave all (not their life but their children, and that IS everything)  so this country can be served, somehow.
She lost her leg.She  rucked up and held it together. You better believe that for GOFO and PS equivalent, who have the opportunity to be covered for something like this, they would be. The Federal court judge even wrote “narrowly construed” for CF members vice “broad and liberal” for PS Pension Act.  I’d trade in a company strength worth of Ottawa’s generals pensions  just to make this persons life one minute better.
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Offline kratz

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CBC.ca

She lost her court challenge today.

Quote
Capt. Kimberly Fawcett has been embroiled in a prolonged battle with the Canadian Armed Forces, which denied her compensation and reimbursement for a prosthetic limb. The CAF determined she was not on duty at the time of the accident and that her injuries were not attributable to her military service.

A series of grievances, internal reviews and legal actions led up to this week's Federal Court of Appeal ruling that sided with the CAF and the Attorney General of Canada.


More at the link above.
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Offline Blackadder1916

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Glad that the MND and other Liberal MPs that pledged to sit down with her and sort it out kept the court case running.

Yes, this is a complicated case, but aside from the direct costs of the 10 year legal saga and all the previous staff work, do the big giant heads not think the PR form this will be really bad for their push to get women in uniform?  They'll happily throw millions for commercials for that though.  Way to be pennywise, pound foolish.  :not-again: Way to turn a potentially good news story into a giant kick in the crotch.  All over what, a limited VAC settlement, and ongoing physio and similar support?

Even if there is no legal requirement, they could have settled it out of court, called it a 'special circumstance' and sorted it out for her.  Every admin case is decided on a 'case by case' basis, so this seems like such a massive waste of time and money to avoid a non-issue. Brutal.

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Glad that the MND and other Liberal MPs that pledged to sit down with her and sort it out kept the court case running.

Yes, this is a complicated case, but aside from the direct costs of the 10 year legal saga and all the previous staff work, do the big giant heads not think the PR form this will be really bad for their push to get women in uniform?  They'll happily throw millions for commercials for that though.  Way to be pennywise, pound foolish.  :not-again: Way to turn a potentially good news story into a giant kick in the crotch.  All over what, a limited VAC settlement, and ongoing physio and similar support?

Even if there is no legal requirement, they could have settled it out of court, called it a 'special circumstance' and sorted it out for her.  Every admin case is decided on a 'case by case' basis, so this seems like such a massive waste of time and money to avoid a non-issue. Brutal.

I wonder if the government took the stand they did to prevent "slippery slope" precedent.

FWIW I don't think her case had a leg to stand on, it is pretty clear to me that was a separation of on/off duty.  We aren't special because we have to go to or from work, like every other Canadian.

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Offline exCAFguy

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The CAF likely spent more fighting it than the prosthetic would have cost.  While I agree she wasn’t on duty and therefore isn’t necessarily entitled to it.......on top of the legal fees the government accrued, what would the monetary cost of the terrible PR be?  Likely pretty high.

Pretty sad

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Precedents are for court cases; every admin issue is looked at in a case-by-case basis. There isn't a big CAF database of admin decisions you can reference when working on something, so aside from your personal experience from previous things you've worked on, you go with what happened and the set of policies and rules in place at the time. Also, this is an incredibly specific and unique circumstance, so odds of a reoccurence are pretty astronomical.

This has a bunch of direct staff and lawyer costs to DND, even more indirect costs, really bad PR, and the pension wouldn't even be a DND line item!  Don't need to be a bean counter to see the really poor cost-benefit here.

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Quote
'I am prepared to fight': After losing bid for compensation, air force captain takes on Bill Blair

Capt. Kimberly Fawcett lost a legal bid for disability benefits following accident that killed her infant son

Murray Brewster · CBC News · Posted: May 01, 2019 4:00 AM ET | Last Updated: 4 hours ago


Capt. Kimberly Fawcett, an air force officer, trains in Ottawa near Parliament Hill. She lost her son and a leg in a tragic roadside accident in 2006; now she's running for the federal Conservatives this fall. (Studio G. R. Martin Photography)

For Capt. Kimberly Fawcett, the personal is now political.

The soon-to-be former air force officer — who last week lost a court challenge of the military's refusal to pay disability benefits for a 2006 traffic accident that claimed the life of her infant son — is now confirmed as the nominated federal Conservative candidate in the Toronto-area riding of Scarborough Southwest.

She said she's jumping into the political fray to help protect other Canadian Forces members from going through what she did.

"I went to Bill Blair three years ago to ask for his help and he turned me away," Fawcett told CBC News. Blair, the Trudeau government's border security minister, represents Scarborough Southwest.

"If he is not prepared to fight for someone like me or anyone else in our riding, then I am prepared to fight him for the job."

Fawcett, who sheds her air force uniform in June, is at a personal and professional crossroads.

The Federal Court last week rejected her challenge of the military's refusal to pay her disability benefits for the accident that claimed the life of her nine-month-old son, Keiran, and left her an amputee.

For more than a decade, Fawcett has fought a pitched battle with the defence and veterans departments. The federal government claims the tragic accident on Highway 401, just outside of Kingston, Ont., did not occur while she was on duty — even though the trip was sanctioned by her commanding officer and part of an approved military-mandated family care plan.

Over a decade ago, Ottawa refused to cover the cost of her prosthetic limb. Fawcett still returned to duty after learning to walk again. She even deployed to Afghanistan for a second time in 2008.


Federal Minister of Border Security and Organized Crime Reduction Bill Blair. (Chad Hipolito/Canadian Press)

She said she asked Blair to look into her case and to act as an information "conduit" with the federal government while the matter was before the chief of the defence staff.

She said she was subsequently ignored and then told nothing could be done because the matter was before the courts.

CBC News asked Blair for comment but the minister said he would not discuss the specifics of Fawcett's case.

"Out of respect for the privacy of my constituents, I do not comment on individual cases that are brought forward to me," he said. "As the Member of Parliament for Scarborough Southwest I always strive to make myself available to constituents to assist them with their concerns."

Fawcett said her desire to run is rooted more broadly in dissatisfaction with the Liberal government's treatment of veterans and military programs. Fawcett questions the fiscal sustainability of some of the Trudeau government's spending decisions and said she suspects those in uniform will be among the first to suffer in the event of budget cuts.

Her candidacy is a little ironic in light of the fact the Liberals rode to power in 2015 partly on the dissatisfaction of veterans who saw themselves being run over by the former Conservative government in its drive to balance the budget.

Fawcett acknowledged the political grievances of the past but said the Conservative Party has learned from them and is moving forward.

"It doesn't matter who, or what party, is in charge of veterans. I want to see that the department does right by veterans," she said.

Fawcett took her fight to Federal Court after her internal grievances were denied. Shortly after the accident, she was told that she qualified for disability benefits, but the decision was overturned and upheld all the way up to the chief of the defence staff.

"My grievance started because I asked for an explanation. And to do this day, I still do not have an explanation," she said.

"We hoped, at the end of the day, our chain of command was supportive. It was a difficult pill to swallow that they didn't and that [the decision] was very arbitrary."

It's that sort of inconsistent treatment that Fawcett said she wants to fight from inside the government.

She's currently weighing whether to fight the Federal Court decision all the way to the Supreme Court. She's also considering a further appeal of her denial of benefits to the federal Veterans Review and Appeal Board.

https://www.cbc.ca/news/politics/kimberly-fawcett-bill-blair-air-force-disability-compensation-1.5117176
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Offline Tcm621

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The CAF likely spent more fighting it than the prosthetic would have cost.  While I agree she wasn’t on duty and therefore isn’t necessarily entitled to it.......on top of the legal fees the government accrued, what would the monetary cost of the terrible PR be?  Likely pretty high.

Pretty sad

 The government doesn't care about cost. I have seen way too many decisions where the more expensive route was taken because the book didn't say you could do it the cheaper way. They also can't bend to PR just because. I feel for the Capt and I would gladly donate to a go fund me for a new running blade but you have to draw the line somewhere and actually working is a good line.

DAOD 5044-1 actually states :

Quote
5.9 While an FCP is the responsibility of the member and is not approved by the unit, the member may seek the advice of unit authorities on the preparation of the FCP and the completion of the form, Family Care Plan Declaration. The form submitted by the member may be reviewed by unit authorities for completeness only.

It is pretty cut and dried. In addition, she isn't hobbling along on a peg leg, she has a prosthetic and wants VAC to pay for a running blade. The press on this seems to be ignoring that fact, either deliberately or otherwise.

Offline Navy_Pete

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On the flip side, the CAF deployed her with a prosthetic, and requires all members to be physically fit. Does it not make sense if you are going to continue to employ someone for a decade, you would pay for something to let them participate in a common PT activity like running if they are able to?  :dunno:

And they do stuff for PR that costs far more time and money all the time, so why not pony up and tie it with their running news stories about supporting injured members and all the other things they've been selling over the last few years. This directly undermines all of that effort, so once again, the Big Giant Heads come across as words, not deeds (which would be a pretty funny April fools prank to set up as a upper level command slogan).

Offline Tcm621

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On the flip side, the CAF deployed her with a prosthetic, and requires all members to be physically fit. Does it not make sense if you are going to continue to employ someone for a decade, you would pay for something to let them participate in a common PT activity like running if they are able to?  :dunno:

And they do stuff for PR that costs far more time and money all the time, so why not pony up and tie it with their running news stories about supporting injured members and all the other things they've been selling over the last few years. This directly undermines all of that effort, so once again, the Big Giant Heads come across as words, not deeds (which would be a pretty funny April fools prank to set up as a upper level command slogan).

My understanding is DND did pay while she was in uniform. The issue is now with VAC who are not all that concerned with PR apparently.

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She didn't just lose her leg. Her infant child was killed on the side of the highway in an accident that occurred after she made arrangements to be ready to activate the FCP, in accordance with a conversation she had with her superior just minutes before. She lost a limb and a life, recovered, and continued to serve in an inspiring and meaningful way. Those are facts that make this whole issue unconscionable, stupid and comparatively petty, regardless of the type of prosthetic or reason why she wants it.   
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Offline Tcm621

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She didn't just lose her leg. Her infant child was killed on the side of the highway in an accident that occurred after she made arrangements to be ready to activate the FCP, in accordance with a conversation she had with her superior just minutes before. She lost a limb and a life, recovered, and continued to serve in an inspiring and meaningful way. Those are facts that make this whole issue unconscionable, stupid and comparatively petty, regardless of the type of prosthetic or reason why she wants it.

The fact that her child died is horrible and nothing will ever make up for it. However, it has no bearing on the situation. The FCP isn't something you activate it is merely an administrative tool to ensure members have a plan. To see how there is no liability from the forces, turn it around. If she had been at fault and the other driver injured, would the CAF  have been liable? No because she was taking her kids to daycare not working.

Here are the relevant facts:

Was driving her children to daycare because husband, who normally does it, had to prep for deployment.
Calls her boss and says she is "activating her FCP", (Boss likely replied, "Uh....Ok?")
On the way to daycare, get in a terrible accident loses her leg.
Military pays for all her health care costs, including prostetics.
She retires, wants a new running blade, tries to get VAC to pay. VAC refuses because she was not on duty.

Everything else is fluff and spin in order to gain sympathy and to get politicians to override VAC.

Offline PMedMoe

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The fact that her child died is horrible and nothing will ever make up for it. However, it has no bearing on the situation. The FCP isn't something you activate it is merely an administrative tool to ensure members have a plan. To see how there is no liability from the forces, turn it around. If she had been at fault and the other driver injured, would the CAF  have been liable? No because she was taking her kids to daycare not working.

Here are the relevant facts:

Was driving her children to daycare because husband, who normally does it, had to prep for deployment.
Calls her boss and says she is "activating her FCP", (Boss likely replied, "Uh....Ok?")
On the way to daycare, get in a terrible accident loses her leg.
Military pays for all her health care costs, including prostetics.
She retires, wants a new running blade, tries to get VAC to pay. VAC refuses because she was not on duty.

Everything else is fluff and spin in order to gain sympathy and to get politicians to override VAC.

 :goodpost:

"A good traveler has no fixed plans, and is not intent on arriving".
~ Lao Tzu~

Offline PuckChaser

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She retires, wants a new running blade, tries to get VAC to pay. VAC refuses because she was not on duty.

Everything else is fluff and spin in order to gain sympathy and to get politicians to override VAC.

Politicians write VACs rules. They're not some omnipotent organization above the will or Parliament.

She didn't like what the rules were, tried to get enough public pressure to have them changed. The current government doesn't care, so shes running for office to get it changed from the inside. Probably exactly what someone should do? At least she put her money where her mouth is and stepped up to run herself.

Offline Jarnhamar

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By 2014 Veterans Affairs returned over  $1,000,000,000 dollars that went unused.

2018-"Trudeau Liberals leave $372, 000,000 meant to help veterans unspent since taking office.


Veterans Affairs should have just bought her a new running leg.

« Last Edit: May 03, 2019, 20:34:15 by Jarnhamar »
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Offline PPCLI Guy

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Everything else is fluff and spin in order to gain sympathy and to get politicians to override VAC.

Agreed.  No amount of what-aboutism will change that
"The higher the rank, the more necessary it is that boldness should be accompanied by a reflective mind....for with increase in rank it becomes always a matter less of self-sacrifice and more a matter of the preservation of others, and the good of the whole."

Karl von Clausewitz

Offline Tcm621

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Politicians write VACs rules. They're not some omnipotent organization above the will or Parliament.

She didn't like what the rules were, tried to get enough public pressure to have them changed. The current government doesn't care, so shes running for office to get it changed from the inside. Probably exactly what someone should do? At least she put her money where her mouth is and stepped up to run herself.

That Is exactly what she should do and I wish her all the best. While I disagree with her argument here, hopefully she will be able to affect positive change at VAC, which clearly needs it.

Offline Tcm621

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By 2014 Veterans Affairs returned over  $1,000,000,000 dollars that went unused.

2018-"Trudeau Liberals leave $372, 000,000 meant to help veterans unspent since taking office.


Veterans Affairs should have just bought her a new running leg.

Or... You know... Spend that money so we can pay out to people who have legitimate claims in a timely manner. We have entered a time where 1-2 years is a pretty normal waiting time. Based on the information, I'm getting from VAC it will be at least 16 months (probably closer to 20) until I get a decision on my latest application.

I hope she gets what she needs and if anyone has a link to a GoFundMe or something I would love to donate some cash to help but this is just one of those times when no matter how much it might suck, she just isn't entitled.